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Docket Number

No. 90-15975.

Attorney(S)

Thomas J. Brandi, Bianco, Brandi Jones, San Francisco, Cal., for plaintiffs-appellants. Paul S. Rosenlund and Philip D. Witte, Hancock, Rothert Bunshoft, San Francisco, Cal., for defendant-appellee.

Judges

Ferdinand Francis Fernandez

Acts

Judiciary And Judicial Procedure — District Courts; Jurisdiction — Jurisdiction And Venue — Diversity Of Citizenship; Amount In Controversy; Costs
Judiciary And Judicial Procedure — Courts Of Appeals — Jurisdiction And Venue — Final Decisions Of District Courts

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Smart Summary

Case Summary: Johnson v. Mammoth Recreations, Inc., No. 90-15975 (9th Cir. Sept. 14, 1992)

Factual and Procedural Background

On December 23, 1987, Dairl Johnson was injured while skiing at Mammoth Mountain ski resort when a T-bar lift allegedly "suddenly released" and threw him to the ground. Johnson brought a diversity negligence action against the lift manufacturer (later dismissed) and Mammoth Recreations, Inc. The complaint alleged that the defendants "owned, controlled, maintained, managed, and operated" the ski resort, but it did not name Mammoth Mountain Ski Area, Inc., the entity that actually owned and operated the resort.

Mammoth Recreations denied ownership and operation in its answer and, during discovery, reiterated that it did not own or operate the resort and that inspections were performed by agents or employees of Mammoth Mountain Ski Area, Inc. On July 10, 1989, counsel for Mammoth Recreations sent a letter to plaintiffs' counsel informing them that Mammoth Recreations was not a proper defendant and proposing substitution of Mammoth Mountain Ski Area, Inc.; plaintiffs' counsel did not respond and later claimed not to have received the letter.

The district court issued a Rule 16 scheduling order on April 17, 1989 establishing a six-month period for motions to join additional parties (cut-off October 17, 1989) and stating that after six months such motions would be entertained only upon demonstration of "extraordinary circumstances." Johnson moved to amend his complaint to join Mammoth Mountain Ski Area, Inc. four months after the cut-off date; Mammoth Recreations moved for summary judgment. The district court denied Johnson's motion to amend for failure to demonstrate the requisite circumstances and granted summary judgment for Mammoth Recreations. Johnson appealed.

Legal Issues Presented

When and under what circumstances may a party join an additional defendant after a district court has entered a scheduling order that limits the time for joinder?
Whether the district court abused its discretion in denying Johnson's post-cutoff motion to amend and in granting summary judgment for Mammoth Recreations given the factual record (answers, interrogatory responses, and the July 10, 1989 letter).

Arguments of the Parties

Appellants' Arguments (Johnson)

Johnson emphasized the liberal amendment policy of Federal Rule of Civil Procedure 15(a), arguing that amendment should be freely allowed.
Johnson's counsel asserted they were unaware of Mammoth Mountain Ski Area, Inc.'s existence and relationship to Mammoth Recreations and claimed they never received Mammoth Recreations' July 10, 1989 letter; they contend they first learned of the proper party on February 15, 1990, when Mammoth Recreations' counsel announced an intention to move for summary judgment.
Johnson argued that Mammoth Recreations had a duty to raise the ownership/operational issue at the pretrial conference and that Mammoth's failure to do so should not be held against Johnson.

Appellee's Arguments (Mammoth Recreations)

Mammoth Recreations consistently denied in its pleadings that it owned, controlled, or operated the ski resort and reiterated that position in interrogatory responses.
Mammoth Recreations' counsel sent a July 10, 1989 letter expressly notifying plaintiffs' counsel that Mammoth Recreations was not the proper defendant and offering to stipulate to substituting Mammoth Mountain Ski Area, Inc.
On the merits, Mammoth argued that it did not own or operate the resort and therefore could not be held directly liable for Johnson's injuries; the complaint alleged no theory by which Mammoth Recreations could be held vicariously liable for Mammoth Mountain Ski Area, Inc.'s negligence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
United States v. Bibo-Rodriguez, 922 F.2d 1398	Standard that a district court's factual finding may be overturned only if clearly erroneous; deference to credibility determinations.	Supported the district court's factual finding that the July 10, 1989 letter was sent to plaintiffs' counsel and emphasized deference to that credibility determination.
Miller v. Safeco Title Ins. Co., 758 F.2d 364	Appellate standard: district court has broad discretion supervising pretrial matters; decisions regarding pretrial orders reviewed for abuse of discretion.	Provided the standard of review for the appeal and justified deferring to the district court's pretrial scheduling decisions.
Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149	Statement that Rule 15(a)'s policy favoring amendments is applied liberally.	Cited to acknowledge the general liberality of Rule 15(a) but distinguished Rule 15 from Rule 16(b) where a scheduling order controls.
DCD Programs, Ltd. v. Leighton, 833 F.2d 183	Under Rule 15(a), leave to amend should be granted unless prejudice, bad faith, futility, or undue delay; supports liberal Rule 15 approach.	Used to explain that Rule 15 alone is not the controlling standard once a scheduling order under Rule 16 has been entered.
Forstmann v. Culp, 114 F.R.D. 83	When a scheduling order has set a deadline, a party seeking to amend after that date must first show "good cause" under Rule 16(b) and then satisfy Rule 15 standards.	Adopted as the governing approach: amendment after the scheduling cut-off requires showing good cause under Rule 16(b) before applying Rule 15's factors.
Financial Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165	Same principle: party seeking post-deadline amendment must show good cause under Rule 16(b).	Reinforced the court's statement that Rule 16(b) governs amendment after the scheduling order.
Trinity Carton Co. v. Falstaff Brewing Corp., 767 F.2d 184	Each party has an affirmative duty at the pretrial conference to disclose all factual and legal bases it wishes to litigate.	Used to explain party obligations at pretrial and to reject Johnson's suggestion that Mammoth's conduct excused his failure to act.
Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339 (5th Cir.)	Some courts have treated a motion to amend the complaint as a motion to amend the scheduling order (i.e., de facto motion to modify the order).	Discussed as part of contrasting approaches; the opinion notes other courts have impliedly treated amendment motions as requests to modify scheduling orders.
R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306 (10th Cir.)	Another example of treating assertions outside the pretrial order as a request to modify that order despite no formal motion.	Cited as an example of courts that have treated late substantive assertions as implicit motions to modify pretrial orders.
Jauregui v. City of Glendale, 852 F.2d 1128	Ninth Circuit precedent that a party is bound by facts stipulated to in a pretrial order when the party fails to seek modification of that order.	Used to support the proposition that a party must seek modification from the district court and may be bound by the order if it fails to do so.
U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099	Courts may deny as untimely motions filed after the scheduling order cut-off date where no timely request to modify the order has been made.	Supported the court's approach that a late motion may be denied solely on timeliness when no timely modification request was made.
Dedge v. Kendrick, 849 F.2d 1398 (11th Cir.)	Motion filed after a scheduling order cut-off is untimely and may be denied solely on that ground.	Cited to reinforce that late-filed motions can be denied based on the scheduling order's terms.
Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 363	Equates "good cause" with the existence of extenuating or extenuating circumstances in certain contexts.	Used to explain that "extraordinary circumstances" functions as a close correlate of "good cause."
Engleson v. Burlington Northern R.R. Co., 972 F.2d 1038	Carelessness is not a ground for relief under Rule 60(b) (analogy used to show carelessness is incompatible with diligence).	Applied analogically to emphasize that plaintiffs' counsel's inattention does not constitute the diligence required to show good cause.
Martella v. Marine Cooks Stewards Union, 448 F.2d 729	Carelessness is not a ground for relief (cited alongside other cases).	Used to support the court's conclusion that lack of diligence cannot justify modification of the scheduling order.
Smith v. Stone, 308 F.2d 15	Carelessness is not a ground for relief (cited in the same context).	Supported the court's emphasis on diligence as necessary to show good cause.
Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138	Statement that a scheduling order is not a "frivolous piece of paper" and guidance on the inquiry focusing on the moving party's diligence.	Quoted to justify strict enforcement of scheduling orders and to frame the policy rationale for Rule 16 management.
Riofrio Anda v. Ralston Purina Co., 959 F.2d 1149 (1st Cir.)	Permitting Rule 15(a) amendments in violation of a scheduling order would nullify the purpose of Rule 16(b)(1).	Cited in conclusion to support the view that Rule 16 controls and that Rule 15 cannot be used to circumvent scheduling deadlines.

Court's Reasoning and Analysis

The court proceeded in a multi-step analysis grounded in the interplay between Federal Rule of Civil Procedure 15(a) and Rule 16(b).

Jurisdiction and standard of review: The court confirmed diversity jurisdiction under 28 U.S.C. § 1332 and appellate jurisdiction under 28 U.S.C. § 1291. It stated that district courts have broad discretion in managing pretrial matters and that such decisions are reviewed for abuse of discretion (citing Miller).
Distinction between Rule 15 and Rule 16: Although Rule 15(a) is liberally applied to allow amendments, once a district court enters a Rule 16 scheduling order setting a deadline to join parties and amend pleadings, the Rule 16 timetable controls. After the scheduling order deadline, a party seeking amendment must show "good cause" under Rule 16(b) (and then satisfy Rule 15 if good cause is shown).
Nature of the scheduling order here: The district court's scheduling order gave six months to join additional parties and declared that after that period no joinder would be entertained unless "extraordinary circumstances" were demonstrated. The Ninth Circuit read "extraordinary circumstances" as closely related to, and not less rigorous than, the "good cause" standard of Rule 16(b).
Meaning of "good cause": The court explained that "good cause" under Rule 16(b) focuses on the moving party's diligence in meeting the scheduling order. It emphasized that carelessness or a lack of attention does not constitute diligence and thus cannot provide good cause for belated amendment.
Application to the facts: The court found that Mammoth Recreations' answer and interrogatory responses clearly indicated that it did not own or operate the resort. The district court also found that counsel for Mammoth sent a July 10, 1989 letter explicitly identifying Mammoth Mountain Ski Area, Inc. as the proper defendant. Given these clear signals, Johnson's failure to amend within the six-month window demonstrated a lack of diligence. Thus Johnson did not show good cause under Rule 16(b) nor the "extraordinary circumstances" required by the scheduling order for post-cutoff joinder.
Summary judgment rationale: Because Mammoth Recreations did not own or operate the ski resort (as conceded in the record) Johnson could not establish direct liability against Mammoth Recreations. Further, Johnson did not allege any theory by which the negligence of Mammoth Mountain Ski Area, Inc. could be imputed to Mammoth Recreations. Therefore the district court properly granted summary judgment for Mammoth Recreations.

Holding and Implications

Holding: The Ninth Circuit affirmed the district court's rulings. In particular, the court affirmed the denial of Johnson's motion to amend the complaint to add Mammoth Mountain Ski Area, Inc. as a defendant and affirmed the grant of summary judgment in favor of Mammoth Recreations.

AFFIRMED.

Direct consequences

Johnson's post-cutoff motion to join a party was denied for failure to show the "good cause" required by Rule 16(b) (and the "extraordinary circumstances" stated in the scheduling order).
Summary judgment was properly entered for Mammoth Recreations because the record demonstrated Mammoth Recreations did not own or operate the resort and Johnson alleged no theory imputing liability from the operating entity to the holding company.

Broader implications

The opinion emphasizes the primacy and enforcement of scheduling orders under Rule 16 and rejects the notion that Rule 15's liberal amendment policy permits litigants to sidestep Rule 16 deadlines. The court underscored that enforcement of scheduling orders is essential to effective case management and that counsel's inattention or carelessness does not justify modification of scheduling deadlines. The opinion does not announce a novel legal rule beyond its application of existing standards, and its practical effect is to reinforce that post-deadline amendments require a showing of diligence/good cause (and in this case "extraordinary circumstances" where the scheduling order so provided).

This summary is based exclusively on the provided opinion; no information beyond the text of the opinion has been added or inferred.

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DAIRL JOHNSON; CLAUDINE JOHNSON, PLAINTIFFS-APPELLANTS, v. MAMMOTH RECREATIONS, INC., DEFENDANT-APPELLEE.

FERNANDEZ, Circuit Judge:

Dairl Johnson appeals the district court's denial of his motion to amend his complaint. The court found that Johnson failed to demonstrate circumstances that would permit joining an additional party after the joinder cut-off date, and granted summary judgment in favor of Mammoth Recreations. We affirm.

Dairl Johnson's wife, Claudine Johnson, also appeals. Because Dairl was the directly injured party, we refer to him for convenience. Our holding, however, applies equally to Claudine.

BACKGROUND

The underlying facts are straightforward. On December 23, 1987 Johnson was enjoying a day of recreational skiing at the Mammoth Mountain ski resort in Mono County, California. Johnson alleges that he was injured when a "T-bar [ski] lift . . . suddenly released" and threw him to the ground.

He filed a diversity action against the ski lift manufacturer. Dopplemayr Ski Lift Company, Ltd., and Mammoth Recreations, Inc. Mammoth Recreations is a holding company which owns a majority of the stock of Mammoth Mountain Ski Area, Inc., the entity which actually owns and operates the ski resort. The complaint did not name Mammoth Mountain Ski Area, Inc. as a defendant despite the fact that it alleged that the ski resort had been negligently operated and maintained.

Dopplemayr has been dismissed from the action.

In his complaint, Johnson alleged:

At all times herein mentioned defendants, owned, controlled, maintained, managed, and operated a ski resort commonly known as Mammoth Ski Resort in Mono County, California. . . .

In its answer, Mammoth Recreations "denie[d] each and every . . . allegation" of this paragraph. Apparently, Johnson failed to note that Mammoth Recreations had denied ownership and control of the ski resort.

The litigation then proceeded. In due course, the district court filed a Scheduling Order pursuant to Federal Rule of Civil Procedure 16(b) which established, inter alia, a cut-off date for joining additional parties. The order stated:

JOINDER OF PARTIES/AMENDMENTS

All parties are granted six months to move to join additional parties; thereafter, the court will not entertain such motion unless extraordinary circumstances are demonstrated.

No further joinder of parties or amendments to pleadings is permitted except with leave of court, good cause having been shown.

Since the Scheduling Order was filed on April 17, 1989, the cut-off date for joining additional parties was October 17, 1989, six months later.

On July 7, 1989, a date still well within the amendment cut-off date, Mammoth responded to an interrogatory and again informed Johnson that "Mammoth Recreations, Inc. neither owns nor operates the [ski resort] premises." It further informed Johnson that "the lift was inspected by agents or employees of Mammoth Mountain Ski Area," not by Mammoth Recreations, Inc. Johnson still failed to amend his complaint to add Mammoth Mountain Ski Area, Inc. as a defendant.

Mammoth Recreations made one final overture. On July 10, 1989 its counsel sent Johnson's counsel a letter which expressly noted the complaint's deficiency:

As you should be able to determine, Mammoth Recreations, Inc. is not a proper defendant in this case. Mammoth Recreations, Inc. is merely a holding company for the majority of shares of Mammoth Mountain Ski Area, the corporation which owns, maintains and operates the ski resort by the same name. Please advise if you are willing to stipulate to dismiss Mammoth Recreations, Inc. from this action and substitute Mammoth Mountain Ski Area in its place.

Johnson's attorneys did not respond to this letter and now claim that they never received it. They claim they were unaware of the existence of Mammoth Mountain Ski Area, Inc. and its relationship with Mammoth Recreations until February 15, 1990, four months after the joinder cut-off date, when Mammoth Recreations's counsel informed them of Mammoth Recreations's intention to move for summary judgment.

The district court found that the July 10, 1990 letter "was sent to plaintiffs' counsel . . . informing plaintiffs not only that Mammoth Recreations, Inc. was the wrong defendant, but that Mammoth Mountain Ski Area was the proper defendant." Its factual finding can be overturned only if clearly erroneous. Moreover, insofar as it is based upon a credibility determination, it is entitled to heightened deference. See United States v. Bibo-Rodriguez, 922 F.2d 1398, 1401 (9th Cir.), cert. denied, ___ U.S. ___, 111 S.Ct. 2861, 115 L.Ed.2d 1028 (1991).

The district court considered Johnson's motion to amend and Mammoth Recreations's motion for summary judgment. The court found that Johnson had failed to establish the "extraordinary circumstances" that would merit joinder of a party after the Scheduling Order's joinder cut-off date. It also found that the complaint failed to allege any theory of liability by which Mammoth Recreations might be liable. Accordingly, it granted summary judgment in Mammoth Recreations's favor.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction to hear this diversity action under 28 U.S.C. § 1332. We have jurisdiction to review the court's final judgment under 28 U.S.C. § 1291.

"The district court is given broad discretion in supervising the pretrial phase of litigation, and its decisions regarding the preclusive effect of a pretrial order . . . will not be disturbed unless they evidence a clear abuse of discretion." Miller v. Safeco Title Ins. Co., 758 F.2d 364, 369 (9th Cir. 1985).

DISCUSSION

This case turns on a single, narrow question: when and under what circumstances may a party join an additional defendant once the district court has entered an order limiting the time for joinder.

Johnson discusses at length the liberal amendment policy of Federal Rule of Civil Procedure 15(a). Mammoth Recreations does not dispute that Rule 15's policy favoring amendments is applied liberally by us. Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989); DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 185-87 (9th Cir. 1987). Under Rule 15(a), leave to amend should be granted as a matter of course, at least until the defendant files a responsive pleading. After that point, leave to amend should be granted unless amendment would cause prejudice to the opposing party, is sought in bad faith, is futile, or creates undue delay. Id.

Nonetheless, Rule 15 does not provide the standards by which we consider Johnson's motion to amend to add Mammoth Mountain Ski Area, Inc. as a defendant. Once the district court had filed a pretrial scheduling order pursuant to Federal Rule of Civil Procedure 16 which established a timetable for amending pleadings that rule's standards controlled. Rule 16 provides in part:

(b) [The district court] . . . shall, after consulting with the attorneys for the parties and any unrepresented parties, by a scheduling conference, . . . enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;

(2) to file and hear motions; and

(3) to complete discovery.

. . . .

The order shall issue as soon as practicable but in no event more than 120 days after filing of the complaint. A schedule shall not be modified except by leave of . . . [the district court] upon a showing of good cause.

Thus, Johnson's ability to amend his complaint was governed by Rule 16(b), not Rule 15(a). See Forstmann v. Culp, 114 F.R.D. 83, 85 (M.D.N.C. 1987) (party seeking to amend pleading after date specified in scheduling order must first show "good cause" for amendment under Rule 16(b), then, if "good cause" be shown, the party must demonstrate that amendment was proper under Rule 15); see also Financial Holding Corp. v. Garnac Grain Co., 127 F.R.D. 165, 166 (W.D.Mo. 1989) (same).

Except in certain classes of cases not applicable here, the district court is required to enter a pretrial scheduling order within 120 days of the filing of the complaint. The scheduling order "control[s] the subsequent course of the action" unless modified by the court. Fed.R.Civ.P. 16(e). Orders entered before the final pretrial conference may be modified upon a showing of "good cause," Fed.R.Civ.P. 16(b), but orders "following a final pretrial conference shall be modified only to prevent manifest injustice." Fed.R.Civ.P. 16(e). In this case, the scheduling order was entered on April 17, 1989, and the final pretrial conference was set for August 13, 1990. Thus, Johnson could have sought to modify the order had he shown "good cause" for doing so.

See Local Rule 240(c) of the Eastern District of California for exceptions to Rule 16(b)'s mandatory scheduling requirement.

Johnson argues that the fact that the scheduling order was entered 126 days after the complaint was filed somehow invalidates it. We disagree. Although Rule 16 states that the order "shall issue . . . in no event more than 120 days after filing of the complaint," the Advisory Committee Note explains what steps should be followed if that deadline is missed. If a scheduling conference cannot be arranged within the 120 period, the court must issue the scheduling order after "some communication with the parties." Fed.R.Civ.P. 16 advisory committee's notes (1983 amendment). Nowhere is it implied that a late-filed order is invalid. Moreover, a reading of that sort would be self defeating. The rule is not a move in a game; it is designed to cause litigation to proceed at a reasonable pace.

Johnson did not specifically request that the court modify its scheduling order; he merely moved to amend his complaint. He points out that some courts have considered a motion to amend the complaint as a motion to amend the scheduling order and the court's denial of that motion a denial of a motion to amend the scheduling order. See Spiller v. Ella Smithers Geriatric Ctr., 919 F.2d 339, 343 (5th Cir. 1990) (district court impliedly granted motion to amend scheduling order by allowing defendant to move for summary judgment after cut-off date for pretrial motions); R.L. Clark Drilling Contractors, Inc. v. Schramm, Inc., 835 F.2d 1306, 1308 (10th Cir. 1987) (party's assertion of an issue not listed in the pretrial order was deemed a request to modify that order despite the fact that no formal motion to amend the pretrial order had been made). We have suggested the contrary. See Jauregui v. City of Glendale, 852 F.2d 1128, 1133-34 (9th Cir. 1988) (party bound by facts stipulated to in pretrial order when party failed to seek a modification of order from the district court); U.S. Dominator, Inc. v. Factory Ship Robert E. Resoff, 768 F.2d 1099, 1104 (9th Cir. 1985) (court may deny as untimely a motion filed after the scheduling order cut-off date where no request to modify the order has been made); see also Dedge v. Kendrick, 849 F.2d 1398 (11th Cir. 1988) (motion filed after the scheduling order cut-off date is untimely and may be denied solely on that ground). We see no reason to deviate from that approach here, but the result would not change if Johnson's motion to amend the complaint were treated as a de facto motion to amend the scheduling order rather than a motion to join a party after the binding cut-off date for the motion had passed. In the former case, Johnson needed to show "good cause" for the amendment. Fed.R.Civ.P. 16(b). In the latter, the terms of the order stated that no joinder would be permitted after the cut-off date unless "extraordinary circumstances [had been] demonstrated." Johnson failed to make an adequate showing under either standard.

Johnson argues that the order is ambiguous because its terms establish two standards under which modification is possible, "good cause" and "extraordinary circumstances." But Johnson misreads the order. As we read it, the order states that any motions to amend filed more than six months from the filing of the scheduling order would be considered only under "extraordinary circumstances." However, motions filed during the six-month window would be considered upon a showing of "good case." Thus, the order sets up two different standards for two different periods. It is not disputed that Johnson's motion was filed after the six month grace period had expired. Thus, by the terms of the scheduling order, he was required to show "extraordinary circumstances."

1. "Good Cause"

"A court's evaluation of good cause is not coextensive with an inquiry into the propriety of the amendment under . . . Rule 15." Forstmann, 114 F.R.D. at 85. Unlike Rule 15(a)'s liberal amendment policy which focuses on the bad faith of the party seeking to interpose an amendment and the prejudice to the opposing party, Rule 16(b)'s "good cause" standard primarily considers the diligence of the party seeking the amendment. The district court may modify the pretrial schedule "if it cannot reasonably be met despite the diligence of the party seeking the extension." Fed. R.Civ.P. 16 advisory committee's notes (1983 amendment); Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D. 463, 469 (D.N.J. 1990); Amcast Indus. Corp. v. Detrex Corp., 132 F.R.D. 213, 217 (N.D.Ind. 1990); Forstmann, 114 F.R.D. at 85; 6A Wright, Miller Kane, Federal Practice and Procedure § 1522.1 at 231 (2d ed. 1990) ("good cause" means scheduling deadlines cannot be met despite party's diligence). Moreover, carelessness is not compatible with a finding of diligence and offers no reason for a grant of relief. Cf. Engleson v. Burlington Northern R.R. Co., 972 F.2d 1038, 1043 (9th Cir. 1992) (carelessness not a ground for relief under Rule 60(b)); Martella v. Marine Cooks Stewards Union, 448 F.2d 729, 730 (9th Cir. 1971) (same), cert. denied, 405 U.S. 974, 92 S.Ct. 1191, 31 L.Ed.2d 248 (1972); Smith v. Stone, 308 F.2d 15, 18 (9th Cir. 1962) (same). Although the existence or degree of prejudice to the party opposing the modification might supply additional reasons to deny a motion, the focus of the inquiry is upon the moving party's reasons for seeking modification. See Gestetner Corp. v. Case Equip. Co., 108 F.R.D. 138, 141 (D.Me. 1985). If that party was not diligent, the inquiry should end.

Johnson has failed to demonstrate good cause for his belated motion to amend. As discussed above, Mammoth Recreations's answer to the complaint and response to interrogatories amply indicated that Mammoth Recreations did not own and operate the ski resort, and thus that any theory of liability predicated upon that fact would fail. Moreover, the district court found that Mammoth Recreations's counsel had sent a letter explicitly offering to stipulate to a substitution of the "proper defendant," Mammoth Mountain Ski Area, Inc. Failing to heed clear and repeated signals that not all the necessary parties had been named in the complaint does not constitute diligence.

Johnson argues that Mammoth Recreations had a duty to raise this issue during a pretrial conference, and that its failure to do so cannot be held against Johnson. While it is true that "[e]ach party has an affirmative duty to allege at the pretrial conference all factual and legal bases upon which the party wishes to litigate the case," Trinity Carton Co. v. Falstaff staff Brewing Corp., 767 F.2d 184, 192 n. 13 (5th Cir. 1985), cert. denied, 475 U.S. 1017, 106 S.Ct. 1202, 89 L.Ed.2d 315 (1986), it is not the case that Mammoth Recreations failed to be candid in this case. In its pretrial status conference report, Mammoth Recreations specifically noted "Mammoth [Recreations] believes plaintiff may wish to name additional parties as discovery progresses." (emphasis added). Mammoth Recreations honored its obligation. The burden was upon Johnson to prosecute his case properly. He cannot blame Mammoth Recreations for his failure to do so. The simple fact is that his attorneys filed pleadings and conducted discovery but failed to pay attention to the responses they received. That is precisely the kind of case management that Rule 16 is designed to eliminate. It is one of the reasons that the district courts have been forced to assume the burdens of case management themselves.

In short, Johnson failed to establish "good cause" for modifying the pretrial scheduling order. The district court did not abuse its discretion when it denied his motion to amend — a motion made four months after the cut-off date for amendment had expired.

2. "Extraordinary Circumstances"

By the same token, Johnson has not demonstrated that there were "extraordinary circumstances" permitting joinder after the cut-off date. The district court did not define "extraordinary circumstances" but it is clear that it was not intended to be a less rigorous standard than good cause. The words belie that possibility. Moreover, were it a lesser standard, a party would, in effect, be able to obtain an amendment of the cut-off date without a showing of good cause. That would violate the spirit of Rule 16 itself and nothing suggests that the parties or the court intended such a thing. On the other hand, if the standard were significantly more rigorous than good cause, a party could still seek amendment of the order upon a showing of good cause. Thus, as a practical matter, extraordinary circumstances is a close correlate of good cause. Cf. Parkway Gallery Furniture, Inc. v. Kittinger/Pennsylvania House Group, Inc., 116 F.R.D. 363, 365-66 (M.D.N.C. 1987) ("Good cause" shown when there are "extenuating circumstances.").

Had the scheduling order simply barred further motions after the cut-off date, the district court could have denied any late-filed motion solely on that ground, absent a request to modify the order. See Dedge, 849 F.2d at 1398; U.S. Dominator, Inc., 768 F.2d at 1104.

Johnson utterly failed to show good cause for his dilatory motion to amend. It follows that he also failed to establish "extraordinary circumstances." The district court did not abuse its discretion when it denied Johnson's motion.

3. Summary Judgment

The district court properly granted summary judgment in favor of Mammoth Recreations on Johnson's negligence cause of action against it. The claim hinged on Johnson's assertion that Mammoth Recreations owned, operated, controlled and maintained the ski resort. It is undisputed that Mammoth Recreations did not. Thus, Johnson could not prove that Mammoth Recreations was directly liable for his injuries, and did not even allege that the negligence of Mammoth Mountain Ski Area, Inc. could be imputed to Mammoth Recreations.

CONCLUSION

A scheduling order "is not a frivolous piece of paper, idly entered, which can be cavalierly disregarded by counsel without peril." Gestetner Corp., 108 F.R.D. at 141. The district court's decision to honor the terms of its binding scheduling order does not simply exalt procedural technicalities over the merits of Johnson's case. Disregard of the order would undermine the court's ability to control its docket, disrupt the agreed-upon course of the litigation, and reward the indolent and the cavalier. Rule 16 was drafted to prevent this situation and its standards may not be short-circuited by an appeal to those of Rule 15. Forstmann, 114 F.R.D. at 85; Financial Holding Corp., 127 F.R.D. at 166; see also Riofrio Anda v. Ralston Purina Co., 959 F.2d 1149, 1155 (1st Cir. 1992) (permitting amendment under Rule 15(a) in violation of district court scheduling order "would have nullified the purpose of rule 16(b)(1)").

As the torrent of civil and criminal cases unleashed in recent years has threatened to inundate the federal courts, deliverance has been sought in the use of calendar management techniques. Rule 16 is an important component of those techniques. We will not snatch it away or destroy its effectiveness by requiring district courts to countenance the practices exemplified by the facts of this case.

AFFIRMED.

JOHNSON v. MAMMOTH RECREATIONS, INC